March 2017

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SONA2017: Chel Diokno’s War on the War on Drugs

Attorney Jose Manuel Diokno takes a stand on behalf of thousands dead, and aims to help survivors through this recurrence of dark nights.

by Alcade Mal, photo by Carlo Gabuco

This article was first published in the May 2017 issue of Rogue.

In the age of Duterte, it is the obvious question no one wants to have to ask. What does one do if he finds out his name is on the local drug list?

The creation and maintenance of these lists has color of legal authority, through PNP Circular 16-2016, promulgated just one day after Rodrigo Duterte assumed the presidency on June 30, 2016. Yet there is no built-in mechanism for one who may have been wrongly accused to challenge his inclusion in the list. Surrender, as a means of clearing one’s name or even of one’s conscience, has become the instinctive response of many who find themselves tagged, but not charged, through any formal legal mechanism as a criminal suspect.

And yet, many of those who have surrendered, who have sworn oaths to never, ever become involved in the illegal drug trade, still end up dead. Albert Sidayon of Pasig City; Bryan Agsalda of Jones, Isabela; Rogelio Salamate Jr. of Las Piñas City; Annabel de la Cruz of Mandaluyong City; Arman de la Paz of Marikina. All previous surrenderees, all since gunned down.

The definitions of extra-judicial killings equivocate. The numbers vary, but certainly rank in the thousands, more than the 3,240 documented murders during the martial law regime of Ferdinand Marcos. Thousands of families grieve for their dead, and for their thousands more left orphaned by the drug war. Some of them will choose to grieve in silence. Others will want to fight back, to seek the justice that is very much the entitlement not just of the victims of drugs, but also the victims of the drug war. Yet in a culture where the accuser is also the official investigator, as well as the suspected executioner, the integrity of the authorities to prosecute the perpetrators of extra-judicial killings is compromised. How then can one who is aggrieved obtain justice under these circumstances?

These are questions that bedevil even the most committed human rights lawyers such as Jose Manuel “Chel” Diokno, the president of the Free Legal Assistance Group and dean of the De La Salle University College of Law. While lawyers are obliged to support the Constitution, especially the Bill of Rights, their clients also expect them to offer concrete and helpful solutions to their cases. Further harm to the families of EJK victims does not help. “It’s a very difficult situation for a lawyer at this time,” Diokno says. He does not blame the people for being afraid. “It is very clear the government has sent the message that if you speak out, your name might be on the list the next time.”

“As a lawyer,” Diokno says, “I would explain to clients what their legal remedies are, and I would encourage them to pursue those remedies. But at the same time, I wouldn’t want to encourage them to file a case, because I don’t want it to be on my conscience that they would be subject to extra-judicial killing or similar kinds of activities. So it’s very hard for us at this point to pursue legal remedies.”

Diokno clarifies that the legal strategy for now, though, is not one of abject surrender. In fact, there have already been victories before the courts in those instances where the families of victims have decided to fight. Efren Morillo, the lone survivor of a police raid in Payatas, and Cristina Gonzales, widow of a drug suspect killed in Antipolo, were both able to obtain from the Supreme Court writs of amparo—protection orders that prevent law enforcement from approaching within one kilometer from their homes or work places. These protection orders, Diokno says, are apparently respected by the government, for now.

Even in those cases where victims or their families have been more apprehensive in fighting back right now, Diokno offers a remedial effort that may bear fruit in the long run. “One of the things that FLAG has been doing, what we’re after at this point, is documenting cases. We have developed a template for all victims of the war on drugs and EJKs and similar human rights violations to make sure at this point that when the day comes that cases can be filed, that we have the evidence required to pursue these cases.” The quest for precise documentation is the exact opposite of the scarlet listings being employed by law enforcement. “It’s very easy to make allegations of human rights violations, but for us to gain a lot of headway in terms of vindication of human rights, we have to make sure that they are properly supported by the facts. Right now, it’s really a fight for the truth. You have a lot of people pushing for a reality that isn’t really real, and we want to make sure that if called upon, we want to make sure what really happened...We hope that the time will come when people will feel that it is time that they vindicate these rights.”

Law students, the Commission on Human Rights, and other human rights organizations are being trained by FLAG to properly document these emerging cases of extra-judicial killings and other human rights violations. The afflicted are encouraged to reach out to these organizations, or even to their own religious organizations, which Diokno observes, have become “really more and more open to helping those who have been victimized by these kinds of cases.” This is an approach geared towards the bigger picture. “The template we have developed, we think, is compliant even with international standards, so that if people from the United Nations and other international organizations look at the documentation, they would be satisfied that it is sufficient.”

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“..Even human rights lawyers were branded as Communists at that time. Nowadays, the branding is different. If you are a criminal, drug addict, drug pusher, then you are not human and you don’t deserve human rights.”

Diokno, now 56, has been practicing law since 1988. He counts among his clients such personalities as ZTE whistle-blower Jun Lozada and Senator Leila de Lima. But perhaps the identities of those whom he has sought to prosecute as a private prosecutor is more telling. Then chief of Task Force Habagat of the Presidential Anti-Crime Commission Panfilo Lacson and 33 police officers involved in the alleged rubout of 11 suspected members of the Kuratong Baleleng robbery group. General Jovito Palparan and several military and para-military personnel, for their alleged involvement in the torture of suspected New People’s Army members, brothers Raymond and Reynaldo Manalo. It is no surprise that Diokno has been popularly identified as a human rights lawyer.

A young Chel Diokno with his father. Image courtesy of Jose Manuel Diokno.

Jose W. Diokno, Chel’s father, was the first ever chairperson of the Presidential Committee on Human Rights (the predecessor agency of the Commission on Human Rights). Just one month before his death in February 1987, an ailing Diokno resigned as chair to protest the killing of 15 unarmed farmers gunned down while protesting at Mendiola Bridge. Three decades earlier, the elder Diokno was fired as Secretary of Justice after he had insisted on the investigation of powerful American businessman Harry Stonehill, who was believed to have wielded undue influence over numerous Manila politicians of all stripes. And as a senator, Diokno resigned from the Nacionalista Party to protest the emerging authoritarian tendencies of his party-mate, President Ferdinand Marcos.

“One thing I would say about my dad,” the younger Diokno says, “he really had a lot of guts and a lot of balls. He didn’t hesitate to speak out when he felt that something was wrong. So even when most people were afraid to say anything, he was one of the few who had the courage to speak out.”

Senator Diokno was among the first imprisoned upon the declaration of martial law in 1972. He was detained for two years without ever being charged before any tribunal, or without even being told why he was jailed. After his release in 1974, Diokno founded FLAG, which took on cases of political prisoners whose rights were violated by the martial law dictatorship. Despite having been freed from detention, Senator Diokno was still required to report to the military the list of people who would consult him as a lawyer.

Chel Diokno sees many similarities between the pattern of oppression during martial law and the situation today. The primary difference lies in the branding. “During martial law, if you were branded as a Communist, if the government said you didn’t have any rights, you were not a human being, and therefore, you can be killed. Even human rights lawyers were branded as Communists at that time. Nowadays, the branding is different. If you are a criminal, drug addict, drug pusher, then you are not human and you don’t deserve human rights.”

Diokno is fearful that with the current pervasive attitude towards drugs being fostered by the government, anyone who is branded as being affiliated with drugs would be highly prejudiced by the justice system, even if innocent. A similar atmosphere pervaded during martial law. He explains, “At certain points during martial law, there were no civilian courts, there were only military courts and even civilians, prominent people opposing the government who were tried and convicted by military courts. Ninoy Aquino, convicted by military courts whose Commander-In-Chief was none other than the President. You could not really expect justice during that time.”

The deterioration of the administration of justice during martial law, Diokno feels, has helped enable the current drug war. The public’s trust in the fairness of our judges is indispensable to respect for the rule of law. That fairness was directly attacked at the start of martial law. “One week after martial law was declared in 1972, Marcos issued a letter of instruction, where he said that from now on, all judges must submit their courtesy resignations that he could accept at any time. A year after that, in 1973, the transitory provisions of the new Constitution provided that judges will remain in office until such time that they are removed by the President. What that means is that from 1972 to 1986, the dictatorship really owned every judge in the country. And that affected our legal system fundamentally. Lawyers realized that if they wanted to win their cases, if they wanted to get clients and make money, they would have to be close to the regime.”

That legal network that operates to fix cases, according to Diokno, remains today. “I tell my law students at DLSU that there are two kinds of lawyers in the country today: lawyers who respect the rule of law and respect justice and the merits of the case, and lawyers who just respect one thing, and that’s money. The unfortunate thing—many of our corporate clients, for example, would rather go to those lawyers of that type rather than those who respect the merits of the case. And that has resulted in a justice system that doesn’t really care much for accountability or transparency.”

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Rodrigo Duterte is the first Filipino lawyer elected to the presidency since Ferdinand Marcos. Duterte is also the first prosecutor elected to the presidency. Diokno accredits the President with particular understanding of the problems of the justice system he inherited. “The President is a lawyer, he was a prosecutor, he knows the problems of our justice system. He knows why it’s so hard to hold criminals and corrupt people accountable… As a long-time prosecutor, he saw firsthand how the legal system worked, and I think that was one of the reasons why he got fed up with it. That’s why he’s been advocating these issues on war on drugs; forget about the proper procedure, just get the results that the country needs. For a short-term solution that may work, but for the long term, I really fear that will destroy the legal system that he is trying to preserve and lead to a system where power will be the determinative factor and the merits of a case or the justice of a case will not really matter anymore.”

Noemi San Agustin holds her son close as police carry out a drug raid in Pasig City.

Diokno is suspicious about the sincerity of the President in terms of the war on drugs, given the latter’s repeated assertion that there are 3.8 million drug addicts in the country when the Dangerous Drugs Board’s own figures cite only 1.7 million (including those experimenters who tried drugs only once in their lives). Diokno is concerned that the drug problem could be used as an excuse for a more authoritarian form of government. “When you condone shortcuts in the law, when you condone EJK and other sorts of shortcuts, ultimately it’s not just the victims of those shortcuts who will suffer, but it’s the legal system itself. My question really is, if the legal system becomes meaningless to the people, what kind of government will be capable of maintaining order in the country? And I fear that the only kind of government that will be capable of maintaining order when the legal system is meaningless is an authoritarian form.”

Diokno insists that there is another path to law and order without sacrificing human rights, one that directly targets the weak legal system in the Philippines that the dean feels the President is frustrated with.

“The reason why crime and corruption are so rampant in our country has nothing to do with human rights and everything to do with our weak legal system. I think he knows that. If he were only to put all his will and the support of the people to strengthen the legal system, he could really have a country that would be the best in Asia. What do I mean by that? Why do criminal syndicates get away with it? Why do corrupt officials get away with what they’re doing? It’s because we can’t put them in jail. Why can’t we put them in jail? Number one, because our police cannot gather the evidence to put them in jail. Number two, because the prosecutors cannot convict them. Number three, because our judges are afraid to make sure they are put in jail. Number four, because Congress hasn’t given the judiciary the budgetary support to have a strong legal system. If he were to do that, we could develop our country into the best in Asia. I do wish he would do that rather than encouraging the police and others to take the law into their own hands.”

Instead of addressing these systemic problems, Diokno decries, officials of the current administration have been openly dehumanizing those suspected or accused of crimes. “The Department of Justice Secretary himself has said that criminals are not human, therefore, they don’t deserve human rights, and I think that’s a big obstacle to accountability. They keep on saying that human rights is the problem when I think that human rights is the solution. If you want a society where people are held accountable, let’s do it, let’s get the evidence, put them in jail and let them rot there. But encouraging the people to take the law into their own hands… do we really want the man with the gun to decide who is a criminal? Do we want the man with the gun to say you deserve to die, therefore I’ll kill you? That’s why we have courts, that’s why we have judges. They are the ones who are supposed to decide that. By encouraging the people with guns to do that, it’s really going to destroy the legal system entirely.”

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Diokno is likewise in the frontlines in the efforts against the reimposition of the death penalty—a priority measure of the Duterte administration. The House of Representatives has already voted to return the death penalty. Diokno has previously cited the findings made by the Supreme Court in the 2004 case of People v. Mateo, that 71.77 percent of death sentences previously reviewed by the Supreme Court had been revoked either through acquittal or modification. Another indictment of the Philippine justice system. The poor are especially vulnerable to the death penalty, Diokno has said, “because they have no voice, no money, no power, and lack the resources to hire good lawyers.”

Diokno believes that if the death penalty once again becomes part of the law of the land, the Supreme Court has no legal option but to thwart the restoration. The Philippine government, he explains, had already ratified the Second Optional Protocol of the International Covenant for Civil and Political Rights, an international instrument that under the Philippine Constitution, forms part of the law of the land. That treaty obligation requires that we not reimpose the death penalty. That is a treaty obligation that we cannot turn our backs on. The Supreme Court would respect those international instruments, and they would have no choice but to respect them.

As Senator Diokno once wrote, the words katarungan and karapatan precede colonization. The root of katarungan is tarong, meaning “straight, upright, appropriate or correct” while karapatan’s root is dapat—or fitting or correct.

But the President has had the propensity for denigrating the international order, even going so far as to threaten withdrawal from the United Nations. If he went as far as to withdraw from the ICCPR, Diokno explains, “that is a prospective withdrawal, he cannot do that retroactively. Our treaty obligations will still remain obligations even if he does that.”

Diokno remains hopeful that international pressure can compel the current administration to improve the human rights record of the Philippines, despite its own compulsions. He advises international observers critical of the human rights situation not to be daunted by adverse reactions from Malacañang. “I think it is a good sign in the sense that our government will have to realize it is part of the community of nations and it will have to comply with at least basic obligations of every country that is part of the United Nations.

“Whether we like it or not, the Philippines is part of the international community. The President may disclaim it, but I think he realizes that no matter what he does, the Philippines is part of the IC. The bottom line will no longer be issues of human rights, but issues of trade. With our commitments to the EU and to other countries, many of those commitments are tied to our human rights record. He cannot just suddenly say, ‘I don’t care about the human rights record,’ as we could lose all of those trade commitments if that happens.”

Diokno pushes back against the claim that human rights are a Western construct. “Filipinos understand that human rights are basic even to us. Even before we were colonized by Spain, by the United State, we respected human rights. Even our own language recognizes that. When you talk about our language of what is just, and what is right, very basic in our language is a sense of fairness, and that sense of fairness is the core of human rights.” As Senator Diokno once wrote, the words katarungan and karapatan precede colonization. The root of katarungan is tarong, meaning “straight, upright, appropriate or correct” while karapatan’s root is dapat—or fitting or correct. The Filipino people have inherently understood the intimate relation between what is just, what is right, and what are rights.

Image courtesy of Jose Manuel Diokno

This myth that human rights is only a Western concept, I don’t think that people will accept it. You cannot discriminate, that any person no matter what he does in his life, deserves some basic recognition of human rights.